MZWEC & Anor v MIMA & Anor

[2007] HCATrans 347

[2007] HCATrans 347

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M161 of 2006

B e t w e e n -

MZWEC

First Applicant

MZWED

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 AUGUST 2007, AT 9.04 AM

Copyright in the High Court of Australia

KIRBY J:   The applicants, husband and wife, are nationals of Sri Lanka.  The wife's claim depends on the husband's.  The applicants seek special leave to appeal to this Court from a judgment of the Federal Court of Australia, where the appellate jurisdiction was exercised by Ryan J.

The applicants arrived in Australia in October 1997 and promptly applied for a protection visa.  The male applicant, a former intelligence officer in the Sri Lankan Army, claimed a well-founded fear of being persecuted for reasons of imputed political opinion.  It was claimed that he was on a "hit-list" of the outlawed LTTE organisation and that four other Army officers on that list had been killed.  The male applicant also claimed to fear persecution because of his race.  Although he considered himself Singhalese, his birth certificate indicated that he was of Tamil ethnicity.  A delegate of the Minister refused the application for a protection visa, rejecting the contention that the applicants fell within the definition of "refugees" for the purposes of the Refugees Convention and Protocol.  The applicants sought review by the Refugee Review Tribunal ("the Tribunal").  The Tribunal rejected the applicants’ contentions on the basis that the male applicant was not a credible witness; that his evidence was inconsistent with country information; and that it was incongruous, far-fetched and unconvincing.

From the rejection of the claim by the Tribunal, the applicants sought judicial review in the Federal Magistrates Court.  McInnis FM considered but rejected that application.  The applicants then appealed to the Federal Court of Australia where Ryan J rejected the appeal.

Before the Federal Court, the applicants' case was that the Tribunal had fallen into jurisdictional error because of various errors.  These allegedly included denying the male applicant an opportunity to comment fully on matters affecting his claim and the foundation of his alleged fear; failure to provide him with country information reports; failure to take into account his evidence; and alleged procedural unfairness.  All of these complaints were rejected by Ryan J for extended reasons which disclose no legal or factual error.

The applicants' draft notice of appeal continues the complaint of jurisdictional error on the part of the Tribunal voiced below.  No other question of law is advanced presenting any issue of general legal importance.  Essentially, the applicants failed below because the Tribunal found the male applicant's evidence lacking in credibility.  Judicial review is not available to permit a substantive appeal on the merits against adverse credibility findings.  That, in substance, is what the applicants seek.

We are not convinced that the applicants have demonstrated jurisdictional or other legal error so as to warrant a grant of special leave.  The applicants' case does not enjoy reasonable prospects of success, were special leave granted.  Accordingly, the application must be dismissed.

Because the applicants are unrepresented, their application has been dealt with in accordance with Rule 41.10 of the High Court Rules.  Pursuant to Rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application and I publish the disposition signed by Justice Callinan and myself.

AT 9.07 AM THE MATTER WAS CONCLUDED